Elena Kagan "will rarely be a friend of liberty on the Court"
Cato Institute legal scholar Ilya Shapiro is not optimistic about newly-minted Supreme Court Justice Elena Kagan:
Elena Kagan's confirmation represents a victory for big government and a view of the Constitution as a document whose meaning changes with the times. Based on what we learned the last few months, it is clear that Kagan holds an expansive view of federal power — refusing to identify, for example, any specific actions Congress cannot take under the Commerce Clause. She will rarely be a friend of liberty on the Court.
It is thus telling that Kagan received the fewest votes of any Democratic nominee to the Supreme Court in history, beating the record set only last year by Sonia Sotomayor. Even several senators who had voted for Sotomayor voted against Kagan, including Democrat Ben Nelson.
Editor's Note: As of February 29, 2024, commenting privileges on reason.com posts are limited to Reason Plus subscribers. Past commenters are grandfathered in for a temporary period. Subscribe here to preserve your ability to comment. Your Reason Plus subscription also gives you an ad-free version of reason.com, along with full access to the digital edition and archives of Reason magazine. We request that comments be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of reason.com or Reason Foundation. We reserve the right to delete any comment and ban commenters for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
If Liberty went on a date with her, he wouldn't get to first base.
"Liberty" is clearly a female stripper's name. And Elena would go to fifth base.
Maybe what my step father was doing to me wasn't so bad after all.
Ready for the pitcher's mound, sugah?
refusing to identify, for example, any specific actions Congress cannot take under the Commerce Clause.
Maybe we should just alter that to the "Intercourse Clause" for reasons which should be all too obvious.
I prefer "Sodomize with a Mace Clause". It more accurately describes what the Federal government is doing.
"Where does the government get the constitutional authority to do this?" the cry goes up across the land. Elena Kagan won't give a satisfactory answer
My esteemed colleagues in Congress have already answered this to my satisfaction, and hence to yours.
There aren't too many levers of power left that haven't been put in place for a strongman to take control in America. With Kagan's elevation to SCOTUS, we may well see the rest of the puzzle fall into place. It's just a matter of time now, really.
If you think Kagan will change the status quo of the United States political system significantly, for good or evil, you are delusional.
No, it'll be incremental as it has been for some 80 years now. It's just that the remaining scope of power not yet seized by the Central State is so much smaller than it ever has been now.
Kagan will not rule significantly different on any issue than the justice she is replacing would have. Like I said, status quo.
Which side she comes down on, true. But the devil is in the details of her opinions.
The important thing is that another woman is on the Supreme Court, because women think differently than men. They see black, men see white. This is called "balance." Justice will be served only when women are a permanent majority on the Court. This will make up for past injustices.
Another statist. Lovely.
Maybe not but she sure is a good friend to ugly thats for sure.
Lou
http://www.web-privacy.at.tc
"a good friend to ugly"
I've never heard that before; I like it.
I'm still waiting for Obama to do something that isn't completely shitty. I'd take that as a temporary win.
He is literally the worst president...possibly in 100 years. Just absolutely terrible.
Why did he want to be president, anyway? Is he an enemy agent or something?
I think he is wondering the same thing. I really get the feeling he hates his job and the country along with it. It was a lot more fun having people ghost write autobiographies and voting present.
He's going to make Jimmy Carter look like a genius in 20 years, mark my words.
Carter was an incompetent fool. I get the impression Obama know *exactly* what he's doing.
Carter was an insufferable scold. But he for all of his faults did try to live a somewhat humble life while he lectured the rest of us on our faults. Obama in contrast says this
"We can't drive our SUVs and eat as much as we want and keep our homes on 72 degrees at all times ? and then just expect that other countries are going to say OK..."
And then spends millions for his bitch wife to hang out in the South of Spain and take 8 fucking vacations in one summer, while 60 soldiers a month are dying in Afghanistan and the country is in the worst recession in 70 years.
That dichotomy alone makes him more loathsome than Carter or even Nixon.
No, he's a typical Democrat. And he's black with an funny name. So, for many posters here, that means he's an enemy agent who is the worst president in 100 years. Stop being retarded.
How about Nixon being worse, even from a libertarian perspective? He instituted wage and price controls and resigned in disgrace. Has Obama instituted wage or price controls?
The wage and price controls were easier to undo than Obamacare will be. And are no more damaging.
Yes, because if he was white and fucking the country this hard we'd have no problem with him at all. Dumbass.
I never took you to be a racist, NutraSweet. For shame.
The fucker's sexist too. I pity his black mother.
I hate the white race. Especially the Irish.
At least on this we agree, you mick fuck.
No, but probably nobdy would call him an "enemy agent". Using that language makes it sound like "He's a secret Muslim dontcha know his dad was a muslim from Kenya (and he was born there)".
Oh, please. First, it was a joke. Second, he's effing up an already bad situation and showing no signs of relenting. While he's just an inept man with socialist tendencies in my book, it's not that hyperbolic to make the sort of joke I did.
Lighten up, Francis.
You just made the list.
that means he's an enemy agent who is the worst president in 100 years
That he is not the former doesn't preclude him from being the latter. So don't link the two.
It think he's a terrible president. Not quite on par with Bush, but rapidly getting there. He was elected on the basis of "voting against the other guy" and not "we love your half-baked quasi-socialism." And any objection to his massive overreach is deflected by his minions by calling his opponents racists.
After Bush and in a shitty financial situation, this country needed Clinton, not the worst aspects of FDR and Carter combined into one uncriticize-able activist backed by a Congress filled with idiots.
SF is dead on that Obama's thing was 1. not Bush and 2. make history! Knowing that he really should have put more effort into being, well, not Bush rather than not overturning most of what he bitched about with Bush. I think this is the main reason his approval has slipped so low...
"Not quite on par with Bush"
You sure about that?
He hasn't sent enough American soldiers to their deaths yet. Give him time.
"any objection to his massive overreach is deflected by his minions by calling his opponents racists."
Not many worry about being called racist anymore.
Has Obama instituted wage or price controls?
Not yet formally, but he has been threatening to do just that for the insurance companies.
Won't somebody think of the insurance companies!
Sure. Let's run them all out of business and leave no one with insurance. that is a great idea. And just because price controls have failed and produced disaster every time they have been tried before, doesn't mean they won't work this time.
The insurance companies are gonna go broke! Won't someone think of them?
If impose price controls on them, they very well may. Or if they don't, they will do so by gutting the payments they provide and with it the medical care you receive.
Are you really that stupid? Or just have such an ego you can't admit that pretty much every economic idea you have ever supported will result in disaster?
And if we raise taxes then we will go back to living in caves, right? I mean that's the kind of thing your side was screaming when Clinton introduced THE LARGEST TAX INCREASE IN HISTORY or whatever, and the 90's were pretty sweet.
See John, I think economics is a bit more nuanced than you do.
"THE LARGEST TAX INCREASE IN HISTORY or whatever, and the 90's were pretty sweet."
They were good, right after 1995 when the Republicans cut taxes in about the same measure Clinton raised them. Especially when they cut the capital gains tax.
Come on MNG, you can do better than that. You are starting to sound worse than Tony.
"THE LARGEST TAX INCREASE IN HISTORY or whatever, and the 90's were pretty sweet."
They were good, right after 1995 when the Republicans cut taxes in about the same measure Clinton raised them. Especially when they cut the capital gains tax.
Come on MNG, you can do better than that. You are starting to sound worse than Tony.
So government cut some taxes and raised some more. We were told the raising would ruin the economy. It soared. It's pointed out to you and you say "it soared DESPITE the raises and BECAUSE of the cuts."
If that ain't religious....
How 'bout this, Mingy? The taxes were a wash, and liberalization of some aspects of the economy, as well as globalization, the dot.com boom, and more free trade helped out enormously.
Yes. He has implemented wage controls. He has a fucking Pay Czar for Christ's sake. And please recall he had Wagoneer (sp?) at GM fired.
Nixon was decent on some things, though his lack of character and economic insanity were huge problems. I'm finding it hard to find anything good about this administration. Practically nationalizing industries, inept and inartful dealings abroad, divisive actions and words at home, horrible on civil liberties, etc., etc., etc.
The only thing I will say for Obama is that part of his problem is the worst Congress in memory, and maybe ever. Obama is a bad president and may prove to be one of the worst, but he has some time left to redeem himself.
And please, please, please stop trying to suggest this disfavor has anything to do with Obama's race or ethnic background. If my best friend were in the White House doing the same thing, I'd tell him he was blowing it.
Good point. God I hate him for being black and having a funny name. I only support anti-freedom white Marxists with murican-sounding names.
I think he is about to sign a law lowering the sentences for crack so that it matches that of cocaine. That is literally the only positive thing different than Bush that he has done that I can think of.
Nope. Still a 7-1 disparity.
Yep, he couldn't even get that one right. He's just a complete fucker.
In other news, the perfect conyinues to be the enemy of the good.
Eat shit and die, asscunt.
Great joe's law, BTW.
Whats REALLY funny is that you kind of stepped into joe's law while invoking it. See, joe's law was making a mistake in a post which directly impuned the intelligence of another. But my post doesn't do that, yours does, and since you're wrong about my post it's you who fell into the law fool.
I know you are, but what am I?
""I think he is about to sign a law lowering the sentences for crack so that it matches that of cocaine.""
While that is good, the same bill doubles the penalty for pot browines. So while it may do something about the difference betweeen cocaine and crack, it creates a new one for pot, and pot in baked goods.
I'm still waiting for Obama to do something that isn't completely shitty. I'd take that as a temporary win.
He is literally the worst president...possibly in 100 years. Just absolutely terrible.
I reply only to say:
Racist.
I mean, clearly. Racist.
I figure if I keep just repeating that anytime anyone says anything negative about anyone else, it will gradually lose what little meaning it has left.
You pasive racist bastard.
"Is he an enemy a foreign agent or something?"
Where is MNG to tell us she is a great justice because she went to all the right schools?
And that her credentials are all bona fide because the schools were private . . . Remember he will come up with that non sequitur.
Anyone who is still living on their college resume past the age of 30 is not qualified for anything.
They are looking to pas a bill thaty would provide tax credits to employers who hire and retain for 52 weeks, people that have been unable to get a job in over 99 weeks. What employer in their right mind would take that deal?
And if they do, doesn't that just mean that they passed up someone who has only been unemployed for say, 3 weeks?
Where's the gain here?
The gain from the same land of unicorn and rainbows that says you can tax and borrow money and somehow create wealth. It is all in the multiplier effect.
Look John, you got served, just admit it.
Mediocre=graduating with honors from three Ivy League schools, working as a law clerk to a SCOTUS justice, being a tenured professor and school dean at an Ivy League school, and Solicitor General of the United States.
What color is the grass on your world?
Although her paper qualifications are better than Miers to some degree, there's not a big difference between them. The huge issue with Miers, as I recall, was the fact that she'd never been a judge. It's not a requirement for the office (in fact, there are no requirements), but still.
Team Red, Team Blue.
What's good for me,
Ain't good for you.
I remember it was the right that hated Miers and sank her nomination. Did the left hate her that much?
I also think Kagan has a bigger gap in accomplishments over Miers.
Yes it was the right because they unlike the Left have standards. They actually wanted a justice who did more than just agree with them. You know, someone who was qualified for the position.
John, what planet are you on? The right objected to Miers because they were afraid she might be a pro-abortion Trojan horse. The left objected to her because of her lack of qualifications.
Tony I live on earth as opposed to Tony land. And it is safe to say I read a lot more of the right than you do. They didn't think she was a pro abortion trojan horse. They thought she was a lightweight who would have gotten on the court and turned into another Suiter. They wanted someone who was an intellectual who would write great opinions and move the court.
"They thought she was a lightweight who would have gotten on the court and turned into another Suiter. They wanted someone who was an intellectual who would write great opinions and move the court."
Tony I read the right a lot and this is what I remember from that flak. Abortion was pretty secondary.
By pro-abortion Trojan horse, I mean another Souter, not that I'd describe him as a lightweight. I'm not sure I buy the conservative lion thing, because she was replaced with the affectionately nicknamed "Scalito."
The woman is 50 something years old and the best thing you can say for her is that she graduated from the right schools. She has never been a scholar of note. She was an unremarkable solicitor general and by many accounts a downright disaster of a dean.
Is she a mediocrity compared to people who smoke crack all day? No. Is she a mediocrity compared to people who are nominated for high judicial positions? Absolutely and probably worse. She is nothing but a political hack. I don't care what school she went to. I care what she has done in her career, and that is a record of mediocrity at everything except working political connections. She is great at that.
It makes sense you like her so much. You are a political hack who have never had a substantive thought in your life beyond what is good for your political team. You two go together quite well.
John
I realize you are borderline retarded, but surely you didn't miss this part of my post did you:
"working as a law clerk to a SCOTUS justice, being a tenured professor and school dean at an Ivy League school, and Solicitor General of the United States."
Only the first eight words of my post concerned where she graduated from. You just are hell bent on ramming through your silly narrative in spite of anything...
Actually, here is where I agree with John: A justice should either have a great record of constitutional scholarship or a great record as a jurist. Or, of course, both. Without either of those, you shouldn't be getting nominated.
Neither political party seems very interested in finding the best man or woman for the job anymore. Not calling them out for it, even if you're on the same side, is a huge mistake. We just keep letting our government get less competent, all while allowing its power to grow without serious limit. Not a felicitous combination.
Sadly Pro I think ever since Bork having a record, whether of scholarship or as a jurist, is seen as a liability because (horrors!) you may have expressed an opinion on things! And that would peel off votes and such...
Well, no doubt there's truth to that. As we saw in the last presidential election (and with Bush in 2000), we prefer an enigma to someone who actually has taken a position. We, and our media filter overlords, are pretty stupid.
What was great about Bork is that he freaked out many different political classes. I'd have voted against him myself. While qualifications should be a threshold issue before even considering an appointment, there's also the question of whether the potential nominee makes sense and would be a good justice.
I will be the first to admit Pro that Miers had no business being nominated for a Circuit court job much less the Supreme Court.
"working as a law clerk to a SCOTUS justice"
There is nine of them every year. And the position comes from connections as much as anything. Try again.
"being a tenured professor and school dean at an Ivy League school"
She wasn't going to make tenure as a 1st Amendment scholar and left to take a mid level position in the Clinton Administration. She then used her connection to Larry Tribe to come back and be a "administrative law scholar" and did just enough to use her supporters to get tenure. Yeah, she made it. But it is not like she set the world on fire or ever wrote or thought anything that would make you think she should be a Supreme Court Justice.
And the Dean job was again the product of her connections and politics. And beyond that so what? Deans manage and raise money. It in no way qualifies her for the Court.
And Solicitor General is another political position. And she was only there 18 months. It is not like she is Ted Olson or something.
You do a great job of laying out the career of a mediocre political climber. That is what she is. You only won't admit the obvious because you are a hack. And hacks never admit fault on their side.
And throwing out insults just emphasizes how badly you are losing this argument.
You really think that being a law clerk for a SCOTUS justice is not an accomplishment that is highly coveted? WTF?
And what evidence do you have that she wasn't going to make tenure and then returned and only got tenure through connections? Did she not go through the usual process? Is the process at the school not a rigorous one?
Why would managing a prestigious law school not be a plus for a hire? You don't think management is a worthy skill?
I can't find the damned. But there was a very good profile of her career in one of the major magazines. She is actually a tough broad. She had a lot of set backs and over came a lot. But, that doesn't make her qualified for the Supreme Court.
"She has never been a scholar of note."
Anyone can go to google scholar and type in her name and see her peer reviewed books and publications. I don't know about "scholar of note" but there are plenty of entries...
Google away. She wrote a few things on the 1st Amendment back in the 1990s. And a couple of things on Administrative Law. None of it is that good or original. Is she qualified to be a middling law professor? Sure. But compare her output to someone like Cass Sunstein or Richard Epstein or any other real no shit scholar. And it shows her to be what she is, a mediocre careerist.
" None of it is that good or original."
And you come to this conclusion how?
By reading it. Go look up her CV. The articles are boring but you can read them. And also I do federal administrative law so I have some credentials to judge them. It is not like everyone in the field is hanging on her words.
"It makes sense you like her so much. You are a political hack"
Where do you get that I "like her so much?" I've consistenly said she was not the best choice, even way back (go search boy, search!). But see, since I'm not a hack like you swallowing every narrative right wing blogs feed me I can admit the woman is not "mediocre" while lamenting her choice. It's called nuanced thinking John, try it some time!
But I was CAPTAIN of the chess club! That's got to mean something!
You called her a tax leech when she worked nearly all her life for private entities. You were stupid, just admit it.
No. I called her a craven careerist. I never called her a tax leech anywhere outside of your head.
That was for OM stupid.
Re: MNG,
Thank you for showing your appetite for intellectual dishonesty, MNG. She didn't work for mere private entities - she worked in academia.
Bwa ha ha ha ha!
Many parts of academia are private moron. I think every school she graduated from and worked for were.
Cut all federal funding out of their budget and see what Harvard's balance sheet looks like. I guarantee you it won't be pretty.
Harvard really doesn't need federal money. Last I heard, its endowment was in the billions of dollars.
Re: MNG,
MNG, you must take me for some partisan hack - just because some entity calls itself private, does not mean a) I have to be behooved to it and b) it really is private. This is why I point out your intellectual dishonesty.
Second, the fact that she has all these "credentials" means CRAP when it comes to putting her hands in the dirt and do some work. I have known engineers that are great theorics but cannot repair a control panel even if their lives depended on it.
Sorry, the correct word is beholden. I apologize.
They got buyer's remorse . . . After all, the "wise Latina" ended up being not so much . . .
I can't believe an inexperienced Chicago machine hack who was mentored by Frank Marshall Davis and Bill Ayers would turn out to be a disaster president.
And he had the most liberal voting record in the Senate.
But then again, he did admit to smoking weed in his youth and his wife has great arms. So I can see why 52% of the country was swayed.
Obama's two Supreme Court selections tell me one thing. He's gay.
He does love fat ugly women.
So does George W. Bush! The only hot politician's wife I know is Kucinich, and I'm pretty sure he voted for the twin uglies on the SC.
Laura Bush isn't fat and ugly. She is an average looking woman. But she is Miss Universe compared to the Keagan or the Magic Latina.
Re: John,
Even DRAG QUEENS look like Miss Universe compared to Kagan and the "wise Latina."
Not everyone can have the sweet thighs of Antonin Scalia. Since this apparently matters.
C'mon Tony, it's all about Clarence Thomas' creamy hamstrings.
I heard a little snippet on the radio this morning from his gloat speech yesterday about Kagan's confirmation. His big claim to success was that there are now three women on the Court.
I mean, yeah, fine, that's great, but is putting women on the Court merely for the sake of having women on the Court a desirable end in and of itself? Isn't it more important to have the best, most highly qualified jurists on the Court - regardless of what their gender, race, religion, or sexual orientation might be?
I don't care whether they're male, female, straight, gay, black, white, yellow, blue or purple. I want justices who will adhere to the original understanding of the Constitution and properly understand their role as justices and no uber-legislators.
But I suppose that's asking too much, and I should be happy we have the correct degree of desired "diversity", which is a more important end, apparently.
You have a lot to learn about identity politics. What you are trumps who you are everytime.
Janice Rogers Brown is a woman. And she's black. The daughter of sharecroppers. Must be a racist reason why they didn't appoint her.
"Isn't it more important to have the best, most highly qualified jurists on the Court - regardless of what their gender, race, religion, or sexual orientation might be?"
Look, I see your point, and I agree more than you might guess. I would not have picked Kagan myself. She's clearly not best choice imo. But I don't think she is lacking in qualifications and accomplishments.
One problem is that there is some absolute cosmic sense in which someone is "the best qualified." What would that be? When you hire someone you go off a mix of past accomplishments and guesses about what they will do in the future, including some intangibles.
Also, if you want to provide somethng like women role models to make up for years of forcible oppression you might think having a woman for the sake of having a woman might be important...
Yes. Hypothetical: an all lesbian SCOTUS. Would you be comfortable having that group decide cases that might affect you, or would you worry that maybe they might not have a wide enough range of personal experience? Why should an all male court be seen any different?
If the lesbians were all actually qualified and not cheerleaders for all government actions, it would beat the current trend.
Are the lesbians hot? Because I have to admit that would figure into it for me...
What do you think?
Why do you queers hate lesbians? I've never been able to figure that one out.
My sister is a lesbian. I don't hate them. They just sometimes frighten me. I've been caught in the middle of an impromptu lesbian brawl on more than one occasion. Not as fun as you heteros might think it sounds.
IS SHE HOT?
Yes, and she by definition, among other reasons, has no interest in you.
WRONG AGAIN, ANTONIO! LESBIAN WOMEN COMMONLY USE THE URKOBOLD AS A KIND OF DILDO TO HELP THEM EXPRESS THEIR LOVE FOR ONE ANOTHER.
Oh how it must be nice being Urkobold with lipstick lesbians.
Bulldykes, not so much.
IT'S NOT SO BAD. BULL DYKES HAVE FRIENDS, YOU KNOW. CLOSE FRIENDS.
Our President of the United States had a great couple of months;
1. Financial reformed passed, thanks to "Tea Party Approved" Senator Scott Brown (R-MA)
2. AZ SB1070 (written by Neo Nazi lover, Russell Pearce and private prison giant Corrections Corporation of America (CCA) lover, Jan Brewer, both "Tea Party Approved" ) fails in court when legally challenged.
3. CA Prop 8 (financially supported by San Diego businessman Terry Caster, owner of A-1 Self Storage, Company, San Diego businessman Doug Manchester owner Manchester Grand Hyatt Hotel and the Grand del Mar, Church of Latter Day Saint (LDS/ Mormons), Catholic Church, both "Tea Party Approved") fails in court when legally challenged, the judge appointed by Ronald Reagan.
4. Elena Kagan Confirmed to Supreme Court, (63 to 37, with the help of Susan Collins, Olympia Snowe, Sen. Lindsey Graham, Judd Gregg, and Richard Lugar, could they all be "Tea Party Approved"? I wonder.
5. Another Birther lawsuit (Captain Pamela Barnett, V. Barack Obama) and "Tea Party Approved", was dismissed.
Happy Birthday Mr. President, even though belated, keep going, you are doing great and I am personally enjoy that the so called "Tea Party" is taking it so well. Love it.
Get back to us on Nov 5.
Not to cheerlead for the fucking Republicans or anything. Christ almighty. They won't beat you again, they said they'd quit the whiskey and that they luuuv you.
Slow down Chicken Little, the sky is no longer falling, thanks to our US President, even though the GOP set us up for failure. So you think you can foretell the future, wow, impressive? Whats next, Nancy Reagan tells you the future after she checks with her witch?
She be a good Liberal, She will uphold your inalienable Constitutional right to run naked through a school yard with a corncob up you ass while masturbating and burning an American Flag. Freedom of speech on campus, the right to own guns, property rights, etc, not so sure about those.
Our President of the United States had a great couple of months;
1. Financial reformed passed, thanks to "Tea Party Approved" Senator Scott Brown (R-MA)
2. AZ SB1070 (written by Neo Nazi lover, Russell Pearce and private prison giant Corrections Corporation of America (CCA) lover, Jan Brewer, both "Tea Party Approved" ) fails in court when legally challenged.
3. CA Prop 8 (financially supported by San Diego businessman Terry Caster, owner of A-1 Self Storage, Company, San Diego businessman Doug Manchester owner Manchester Grand Hyatt Hotel and the Grand del Mar, Church of Latter Day Saint (LDS/ Mormons), Catholic Church, both "Tea Party Approved") fails in court when legally challenged, the judge appointed by Ronald Reagan.
4. Elena Kagan Confirmed to Supreme Court, (63 to 37, with the help of Susan Collins, Olympia Snowe, Sen. Lindsey Graham, Judd Gregg, and Richard Lugar, could they all be "Tea Party Approved"? I wonder.
5. Another Birther lawsuit (Captain Pamela Barnett, V. Barack Obama) and "Tea Party Approved", was dismissed.
Happy Birthday Mr. President, even though belated, keep going, you are doing great and I am personally enjoy that the so called "Tea Party" is taking it so well. Love it.
Re: Linda,
They are not.
And as a desert, just to demonstrate MNG's insane love affair with intellectual dishonesty, here's what started our "conversation":
Who on SCOTUS IS a friend of liberty?
Well, we are acquainted. I occasionally share a laugh or two over beers at the bar with Liberty, but it's not like we do back yard barbecues or key parties together.
any specific actions Congress cannot take under the Commerce Clause.